Khanal v. Sheldon

June 8, 2010

TARA KHANAL, RESPONDENT,v.DAVE SHELDON, ALSO KNOWN AS DAVID SHELDON, APPELLANT, ET AL., DEFENDANT.

In an action to recover a down payment pursuant to a contract for the purchase of real property, the defendant Dave Sheldon, also known as David Sheldon, appeals from (1) an order of the Supreme Court, Queens County (Hart, J.), dated January 7, 2009, which, in effect, denied his motion to vacate a prior order dated September 19, 2007, inter alia, granting the plaintiff's cross motion for summary judgment in lieu of complaint pursuant to CPLR 3213, upon his default in opposing the cross motion, and to vacate a prior order dated October 25, 2007, granting the plaintiff leave to enter a money judgment, (2) an order of the same court entered February 25, 2009, which denied an application to sign an order to show cause, (3) an order of the same court dated February 4, 2009, which directed him and nonparty Darren K. Kearns to appear before the court on a subsequent date, and (4) a judgment of the same court entered October 15, 2009, which is in favor of the plaintiff and against him in the principal sum of $50,000.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ORDERED that the appeals from the orders are dismissed; and it is further,

ORDERED that the judgment is reversed, on the facts and in the exercise of discretion, the motion of the defendant Dave Sheldon, also known as David Sheldon, to vacate the orders dated September 19, 2007, and October 25, 2007, is granted, that defendant's moving papers are deemed to be his answer, the order dated January 7, 2009, is modified accordingly, and the matter is remitted to the Supreme Court, Queens County, before a different Justice for all further proceedings in this action; and it is further,

ORDERED that one bill of costs is awarded to the appellant.

The appeal from the order dated January 7, 2009, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

The appeal from the order entered February 25, 2009, must be dismissed on the ground that no appeal lies from an order denying an application to sign an order to show cause (see CPLR 5701).

The appeal from the order dated February 4, 2009, must be dismissed, as no appeal lies as of right from an order which does not determine a motion made on notice (see CPLR 5701[a][2]), and we decline to grant leave to appeal in view of the fact that a final judgment has been entered.

The parties' remaining contentions either need not be reached in light of our ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.